Thomas v. Peters

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

THOMAS RESTORATION, LLC, Plaintiff/Appellee,

v.

JOSHUA PETERS, Defendant/Appellant.

No. 1 CA-CV 24-0116

FILED 11-26-2024

Appeal from the Superior Court in Maricopa County
No. CV2023-005870
The Honorable Mary Collins Cronin, Judge, Pro Tempore

AFFIRMED

COUNSEL

Stone Canyon Law PLC, Tempe
By Ryan D. Bailey, Richard Noel (argued)
Counsel for Plaintiff/Appellee

Jennings Haug Keleher McLeod Waterfall LLP, Phoenix
By Michael H. Orcutt, Joseph A. Brophy (argued)
Counsel for Defendant/Appellant
 THOMAS v. PETERS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge David D. Weinzweig joined.

F U R U Y A, Judge:

¶1 Joshua Peters appeals the default judgment entered against
him in favor of Thomas Restoration, LLC (“Thomas”) and the superior
court’s denial of his motion to set aside the entry of default. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Thomas sued Peters in April 2023 for breach of contract,
breach of the covenant of good faith and fair dealing, and unjust enrichment
stemming from unpaid invoices for mitigation and restoration services.

¶3 After difficulty serving Peters, Thomas moved for an order
directing alternative service by mail and by affixing a copy of the pleadings
to Peters’ property in Phoenix, which the superior court granted. A process
server filed a declaration of service stating service had been accomplished
on October 23, 2023, by posting the pleadings and the order granting
alternative service in a conspicuous place on the property. Peters did not
file a responsive pleading within twenty days from the date of service. Ariz.
R. Civ. P. 12(a)(1)(A)(i).

¶4 Thomas applied for entry of default on November 14, 2023.
The application included the declaration of service and photographs of the
posting.

¶5 Peters entered a notice of appearance on November 27, 2023,
and, pursuant to an agreement with Thomas, filed a stipulation to extend
the responsive-pleading deadline to December 1, 2023. The court entered
an order extending the deadline as stipulated. Under Arizona Rule of Civil
Procedure (“Rule”) 55(a)(4), the default became effective on November 28,
2023.

¶6 On December 1, 2023, Thomas granted Peters five more days
to file a responsive pleading. Peters failed to comply by the second
extension date.

2
 THOMAS v. PETERS
Decision of the Court

¶7 Thomas moved for default judgment on December 12, 2023,
and Peters moved to set aside the entry of default a week later. The court
entered default judgment on December 26, 2023. The court treated the
motion to set aside the entry of default as one to set aside the default
judgment and denied the motion.

¶8 We have jurisdiction over this appeal under A.R.S. § 12-
2101(A)(1) and (A)(2). See Hirsch v. Nat’l Van Lines, Inc., 136 Ariz. 304, 311
(1983) (noting an appeal from a default judgment is permissible when the
default was not authorized by Rule 55 or when there are questions
regarding personal jurisdiction); Bateman v. McDonald, 94 Ariz. 327, 329
(1963) (denial of motion to set aside default judgment “is appealable as a
‘special order made after final judgment’”) (quoting A.R.S. § 12-2101).

DISCUSSION

¶9 We review the denial of a motion to set aside entry of default
and a default judgment for abuse of discretion. Richas v. Superior Court, 133
Ariz. 512, 514 (1982). We review the propriety of service de novo as a “legal
question of personal jurisdiction,” but still defer to the court’s factual
findings, setting them aside only if clearly erroneous. Ruffino v. Lokosky, 245
Ariz. 165, 168 ¶ 9 (App. 2018).

I. Alternative Service

¶10 Peters argues the court lacked jurisdiction to impose an
answer deadline on him or to enter a default because the court improperly
granted a motion for alternative service absent a showing of
impracticability of personal service.

¶11 Peters did not raise impracticability in his motion to set aside.
See Hirsch, 136 Ariz. at 311 (explaining that the scope of an appeal from a
denial of a motion to set aside is restricted to the “questions raised by the
motion”). Peters asserts he raised the impracticability argument with the
court. But he points only to (1) a draft answer and counterclaim he never
filed, (2) a declaration by one of his attorneys detailing his involvement
with the lawsuit, and (3) the reply in support of the motion to set aside,
which—although addressing impracticability—was filed seven days after
the court entered default judgment. Generally, “a claim raised for the first
time in a reply is waived.” Westin Tucson Hotel Co. v. State Dep’t of Revenue,
188 Ariz. 360, 364 (App. 1997). Peters did not adequately raise the issue of
impracticability before the superior court and we decline to address it on
appeal.

3
 THOMAS v. PETERS
Decision of the Court

II. Adequacy of Service

¶12 Peters argues the judgment is void because the court lacked
jurisdiction over him at the time Thomas filed the application for entry of
default due to improper service.

¶13 Courts must vacate void judgments. Blair v. Burgener, 226
Ariz. 213, 216 ¶ 7 (App. 2010). A judgment is void if the court that rendered
it lacked jurisdiction over the defendant due to lack of proper service.
Duckstein v. Wolf, 230 Ariz. 227, 233 ¶ 18 (App. 2012). The party moving to
set aside a judgment for improper service generally has the burden to
demonstrate with clear and convincing evidence his entitlement to set aside
the judgment. Id. at 234 ¶ 20.

¶14 Service by alternative means carries with it certain
requirements specified in the Rules. Applicable here, Rule 4.1(k)(2) requires
mailing the pleading and the order allowing alternative service to the
person being served. In turn, Rule 4(g)(3) requires a process server to file
an affidavit of proof of service with the superior court. When applying for
entry of default, Rule 55(a)(2)(F) sets forth the requisite contents of an
application, including proof of service under Rule 4(g)(3). Peters argues that
when alternative service is authorized, these rules require that a plaintiff
seeking entry of default submit, as a part of its application, an affidavit that
includes a statement that the summons and complaint were mailed. Peters
asserts the application for default here did not include a compliant affidavit
because it did not attach proof of mailing. This argument misses the point.

¶15 Even assuming the proof of service was defective because it
did not state that the documents had also been mailed, the “[f]ailure to
make proof of service does not affect the validity of service.” Ariz. R. Civ. P.
4(g)(6) (emphasis added). “It is not the return but the fact of service which
gives the court jurisdiction.” Brandt v. Daman Trailer Sales, Inc., 116 Ariz.
421, 422 (App. 1977). If service on Peters was valid, the court had
jurisdiction to set deadlines and enter default against him.

¶16 Here, Peters does not argue he was not served; he only
challenges the return of service. That is insufficient to sustain a
jurisdictional challenge. “The return is merely evidence by which the court
may be informed that the defendant has been served.” Id. (citing Fridena v.
Palmer, 107 Ariz. 455, 457 (1971)).

4
 THOMAS v. PETERS
Decision of the Court

¶17 Moreover, this record establishes that valid alternative service
was completed. Thomas’ application for entry of default included a
declaration by the process server that the complaint and order allowing
alternative service were posted in a conspicuous place on Peters’ property.
And—though not contained within the declaration of its process server—
the record includes evidence that Thomas mailed the documents first-class
via the United States Post Office to Peters at his personal residence on
October 23, 2023. This was sufficient to establish personal jurisdiction and
also satisfies the proof requirements of Rule 55(a)(2)(F) to enter default.

¶18 Peters failed to meet his burden of proving by clear and
convincing evidence that the court should have set aside the default
judgment. Duckstein, 230 Ariz. at 234 ¶ 20.

III. No Good Cause to Set Aside the Entry of Default

¶19 A court may vacate and set aside an entry of default for good
cause. Ariz. R. Civ. P. 55(c).

¶20 Citing Rule 55(a)(3), Peters argues there is good cause to set
aside the default here because Thomas never mailed the application for
entry of default to Peters’ attorney. True, failure to notify a known attorney
for the party in default of the application for default renders entry of default
judgment improper. MacLean v. Newgioco Group, Inc., 251 Ariz. 31, 34 ¶ 13
n.3 (App. 2021). But “[a] party requesting the entry of default is not required
to make affirmative efforts to determine the existence or identity of an
attorney representing the party claimed to be in default.” Ariz. R. Civ. P.
55(a)(3)(B).

¶21 Here, Thomas was unaware Peters had legal representation
until the attorney introduced himself via email three days after the
application for entry of default had already been filed and mailed to Peters
personally in compliance with Rule 55(a)(3)(A). And the record shows
Peters’ attorney was already aware of the application for entry of default
judgment at the time he emailed Thomas’ attorney. Peters’ attorney then
sought and received two extensions of time to file a responsive pleading,
one of which was formally recognized by the court. The court did not abuse
its discretion in denying the motion to set aside the default judgment.
Richas, 133 Ariz. at 514.

5
 THOMAS v. PETERS
Decision of the Court

CONCLUSION

¶22 For the foregoing reasons, we affirm the default judgment.
We award costs to Thomas upon compliance with Arizona Rule of Civil
Appellate Procedure 21. We deny Thomas’ request for attorneys’ fees on
appeal because it fails to cite supporting authority for the request. See Ariz.
R. Civ. App. P. 21(a)(2); Ezell v. Quon, 224 Ariz. 532, 539 ¶¶ 28–31 (App.
2010).

AMY M. WOOD • Clerk of the Court
FILED: AGFV

6